Cheney memoir: Just because he believes in torture, we don't have to.

The law, lawyers, and the court.
Aug. 30 2011 5:23 PM

Getting Away With Torture

Dick Cheney's memoir shows the importance of the law, not of torture.

Dick Cheney. Click image to expand.
Dick Cheney

This week Dick Cheney invites us all to join him again in a game he likes to play against the rest of us called Tedious Torture Standoff. He continues to assert—this time in his memoir, In My Time that he has "no regrets" about developing the U.S. torture program, and he continues to argue—as he did this morning on the Today Show —that torturing prisoners is "safe, legal, and effective." He continues to assert that he would "strongly support" water-boarding if actionable information could be elicited from a prisoner. He even says that different standards apply to torturing Americans and foreigners. Cheney is trying, in short, to draw us back into the same tiresome debate over the efficacy of torture, which is about as compelling as a debate about the efficacy of slavery or Jim Crow laws. Only fools debate whether patently illegal programs "work"—only fools or those who have been legally implicated in designing the programs in the first place.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Who knows why Cheney wants to keep relitigating torture in the face of a factual record that has concluded for the thousandth time that it is neither effective nor legal. Maybe it's good for his book sales. All I know is that when almost everyone with any expertise in the matter, and any knowledge of the torture program (up to and including Matthew Alexander and John McCain) says that it hurts more than it helps, Cheney starts to sound a little like the crazy lady in the attic.

So look elsewhere for another round of the debate about the virtues of abusing prisoners in the hopes that 10 years later they will fail to divulge important information that leads only in the most circular possible routes to the eventual capture of Osama Bin Laden. My focus is what Cheney's books tells us about the rule of law in America. As Glenn Greenwald puts it:

Less than three years ago, Dick Cheney was presiding over policies that left hundreds of thousands of innocent people dead from a war of aggression, constructed a worldwide torture regime, and spied on thousands of Americans without the warrants required by law, all of which resulted in his leaving office as one of the most reviled political figures in decades. But thanks to the decision to block all legal investigations into his chronic criminality, those matters have been relegated to mere pedestrian partisan disputes, and Cheney is thus now preparing to be feted—and further enriched—as a Wise and Serious Statesman ...

Implicit in Greenwald's commentary is that the Obama administration is responsible for Cheney's continued legitimacy in the debate about torture, as well as the legitimacy of the debate itself. By deciding to repudiate torture while doing everything in its power to protect the torturers, the Obama administration has succeeded in elevating not only Cheney but the idea that, in America, some torturers are too important to be punished.

But the real lesson of In My Time is not that Cheney "got away with it," though I suppose he did. It's an admonishment to rest of us that the law really matters. The reason Cheney keeps saying that torture is "legal" is because he has a clutch of worthless legal memoranda saying so. Cheney gets away with saying torture is "legal" even though it isn't because if it were truly illegal, he and those who devised the torture regime would have faced legal consequences—somewhere, somehow. That's the meaning of the "rule of law." That, rather than whether America should torture people, is what we should glean from the Cheney book.

It's currently fashionable to believe that political and ideological battles are "real," and it is the law that is empty symbolism. But Cheney stands as an illustration of the real-life, practical value of the law. Torture really did become legal after 9/11, and even after it was repudiated—again and again—it will always be legal with regard to Dick Cheney and the others who perpetrated it without consequence.  The law wasn't a hollow symbol after 9/11.  It was the only fixed system we had.  We can go on pretending that torture is no longer permissible in this country or under international law, but until there are legal consequences for those who order or engage in torture, we will only be pretending. Cheney is the beneficiary of that artifice.

Zev Chafets' provocative piece in response to the Cheney memoir is called We Are All Cheneyites Now. He contends that because "Obama has largely adopted the Cheney playbook on combating terrorism, from keeping Gitmo open to trying suspected enemies of the state in military tribunals" that Cheney's policies have been thoroughly vindicated and we all live in Cheney's America.  I disagree and not just for the reasons Conor Friedersdorf lays out—namely, that Obama has repudiated or refined more Cheney policies than he has embraced—but  because we are not all Cheneyites in a more fundamental sense: Most of agree that we should not be a nation of torturers, and that torture has tarnished the reputation of the United States as a beacon of justice. Most of us do not want warrantless surveillance, secret prisons, or war against every dictator who looks at us funny.  We may be bloodthirsty, but we aren't morons.  On his most combative and truly lawless positions, Cheney still stands largely alone.

The tragedy is that it doesn't matter if we are all Cheneyites now. That there is even one Cheney is enough. He understands and benefits from the fact that the law is still all on his side; that there is only heated rhetoric on ours.  As John Adams famously put it, the United States was intended to be a government of laws, not of men. Dick Cheney is living proof that if we are not brave enough to enforce our laws, we will forever be at the mercy of a handful of men.

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